Jagjit Singh, J.
(1) A complaint filed by the Assistant Municipal Prosecutor against Shri Karam Chand, under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954, was tried by Shri S C. Ahuja, Judicial Magistrate Class, Delhi. The trial Magistrate found the accused guilty and sentenced him to rigorous imprisonment for a period of one year and six months and fine of Rs. 1,000.00 and in default of the payment of fine, three month's further rigorous imprisonment.
(2) On an appeal being filed by the accused to the Court of Sessions it was accepted on September 19.1973 by Shri R. K. Sinha, Additional Sessions Judge. The learned Additional Sessions Judge acquitted the accused after holding that at the time of the sale. the accased had told the Food Inspector that the milk which he was selling was 'separated' milk and on analysis also, the milk sample was found to conform to the standard prescribed for skimmed milk.
(3) Against the order of acquittal made by Shri R. K. Sinha, the Municipal Corporation
(4) The relevant facts of the case are that on December 20, 1972 at about 7 a m. Shri J. P. Tyagi, a Food Inspecter of the Municipal Corporation of Delhi, found on the Grand Trunk Road near Pul mithai, Shri Karam Chand spondent carrying milk for sale, which was contained in three conatainers Shri Tyagi after stirring the conteats of one of the containers on which it was indicated that it contained toned milk, purchased on payment of 35 paise 660 milliltres of milk for purposes of analysis. This sample of milk was taken on in the presence of another food Inspector, Shri G. M. Mittal, and a private person named Shri Zile Singh, who happened to be present there. The milk sample was divide into three portions and after adding formalin, each portion was ailed in aclean and dry bottle. Those bottles were duly stoppered and sealed and one of the bottles was delivered to the Public Analyst; on that very day for analysis The public Analyst made a report dated December 23, 1972 that the milk was adulterated due to 2 8 deficiency in milk fat percentage. The resuit of the analysis was mentioned in the report as follows :- Milk fat : 0.2% Milk solids not fat : 10.95% Starch : Absent. On the basis of the report of the Public Analyst, prosecution was instituted against Shri Karam Chand for selling adulterated milk.
(5) In item A. II. 01.11). of Appendix B to the prevention of Food Adulteration Rules, 1955, standards for different classes and designations of milk have been laid down So far as toned milk is concerned it is required to have not less than 3.0% of milk fat and the percentage of milk solids not fat should not be less than 8.5. In double toned milk the percentage of milk fat is required to be not less than 1.5 and milk solids not fat should not b? less than 9.0%. In skimmed milk the milk fat is not to be more than 0.5% and milk solids not fat should not be less than 8.7%. Under the said item there is a note that when milk is offered for sale without any indication of the class, the standards prescribed for buffalo milk shall apply.
(6) As on the container from which sample of milk was taken by the Food Inspector the class of milk was indicated to be toned milk so in the notice (Exhibit PB) given to the vendor that the sample of milk was being taken to have the same analysed from the Public Analyst and in the report (Exhibit PB) regarding the taking of the sample it was mentioned that the sample was of toned milk. On the notice Exhibit Pb, however, the vendor had written with his own hand in Urdu script that it was cow's milk but later on deleted the word 'cow' and wrote below it the word 'separated'.
(7) The learned counsel for the appellant contended before us that the order of acquittal was altogether unjustified as the indication on the container from which sample was taken was that of toned milk and, thereforee, the standards prescribed for toned milk had to be applied in judging whether it was adulterated or not. On the other hand, the learned counsel for the respondent submitted that at the time of the taking of the sample, the responodent had orally brought to the notice of the Food Inspector that the milk was separated or skimmed milk and even wrote that fact on notice Exhibit Pb and, thereforee, the standards applicable were those prescribed for skimmed milk and not toned milk. It was also stated that according to the result of analysis, the sample fulfillled the requirements of skimmed milk and consequently the learned Additional. Sessions Judge had rightly accepted the appeal and acquitted the respondent.
(8) The question which arises for determination is whether the vendor had brought it to the notice of the Food Inspector at the time of taking the sample that though the indication on the container was of toned milk hut the milk which it contained and which was meant for sals was only skimmed milk.
(9) The evidence of Shri Tyagi (P. W. 2) was that the accused did not disclose to him that the sample given was of separated and not toned milk. He also slated that he knew Hindi and English and did not get the words written in Urdu by the accused on notice Exhibit Pa read from any one till the time of making his statement. He further mentioned that it was incorrect that the accused had told him about writing the word 'separated' on the said notice. The statement of Shri G.M. Mittal (P. W. 3) who was accompanying Shri Tyagi, was to the effect that the milk can, out of which the sample was taken, had indication of toned milk on it and that the report regarding the taking of the sample was read over and explained to the accused after which the latter had signed and thumb-mrked it. That wilness admitted about reading the words written by the accused on notice Exhibit Pb but according to him he did not read over that portion to Shri Tyagi because he had seen the accused talking to Shri Tyagi and though that the conversation was about the writing made on the notice.
(10) Zile Singh (P. W. 4) was called by the Food Inspector to be present at the time of taking the sample. During the trial that witness tried to suppress the true facts and, ther; fore, the trial Magistrate had permitted Assistant Municipal Prosecutor to put to him such questions us could be a sked by the other side in corss examination. In his statement Zile Singh took the stand that the accused was openly saying that he was carrying separated milk and that separated milk was as well indicated on the can in which it was contained. Even the learned counsel for the respondent had to concede that on the can the indication was of toned milk and not of separated or skimmed milk. Obviously, no reliance can be placed on the statement of Zile Singh. He appears to have been won over from the other said and had no hesitation in making wrong statement even regarding such an undisputed matter that the indication on the container from which the sample was taken was that of toned milk and not skimmed or separated milk.
(11) One witness was produced in defense but the learned counsel for the respondent frankly stated before us that no reliance should be placed on his testimony. There is thus nothing, whatsoever, to indicate that at the time of taking of the sample the respondent had mentioned to the Food Inspector that the milk of which sample had been taken was separated or skimmed milk. At first, the respondent wrote in Urdu 'cows milk' on a notice given to him by the Food Inspector but later on changed the word ' cows' to 'separated. As the Food Inspector did not know Urdu so he did not become aware of this fact, till his statement was recorded during the trail, that the accused had written on notice Exhibit Pb that the milk of which sample was taken was separated milk.
(12) It was next urged on behalf of the respondent that from the fact that only 35 paise were relieved by the respondent as price of milk sold could be informed that the milk sold must have been represented to be skimmed milk. There is no evidence on the record regarding the current price at which toned milk and skimmed milk were being sold during the days the sample of milk from the respondent was taken. In any event it would not make any difference that the respondent charged 35 paise as price for 660 mililitres of milk which was indicated to be toned milk though he could have demanded a higher price. When the container in wiich the milk was contained clearly contained an indication that the milk was toned milk the standard applicable for toned milk had to be applied. If that were not so it would be very easy for an unscrupulous person who sells adulterated toned milk which contains practically no fat to escape liability when a sample is lifted by a Food Inspector to tell the Food Inspector that though the indication on the container is of toned milk but what he is selling is only skimmed milk. In the present case, we are satisfied that even no such oral representation was made to the Food Inspector. As the milk had only 0.2% fat as against the required percentage of 3.0 the sample of milk was rightly reported to be adulterated by the Public Analyst. The view taker, by the learned Additional Sessions Judge, in our opinion, was untenable and was not even based on the evidence in the case.
(13) The appeal is, thereforee, accepted and by setting aside the order of acquittal, the respondent Shri Karam Chand, is sentenced under Section 7 read with Section 16 of the Prevention of Food Adulteration Act to six months' rigorous imprisonment and fine of Rs. 1,000.00 and in default of the payment of fine to four months' further rigorous imprisonment As the respondent is not present in the Court today, non-bailable warrants for his arrest shall be immediately issued by the Chief Metropolitan Magistrate so that he may be taken into custody to serve according to law the sentence awarded to him. A copy of this judgment shall be sent to the Chief Motropolitation Magistrate, Delhi for necessaiy action. Appeal accepted.